June 20, 2022
Lee Drutman and James Wallner co-authored a piece for Law & Liberty on changing the selection process for U.S. Supreme Court justices.
Currently, conservative and liberal activists employ litigation instead of legislative strategies to enact their preferred policy change. They seek to amplify the impact justices’ opinions have on the course of American politics more broadly. Such strategies only work when activists can reliably forecast how justices are likely to rule in their case once it gets to the Supreme Court. And while litigation strategies often take years to work, justices’ life tenure and the Supreme Court’s low turnover make it possible for activists to form accurate expectations about the Court’s future composition.
While it is impossible to find justices who lack partisan or ideological views, the Supreme Court can adopt a reform to mitigate litigation strategies used by activists to adjudicate controversial policy questions, like abortion, based on their expectations of how individual justices will decide their case. This would be done by changing the selection process for the Supreme Court’s eight associate justices.
Using a sortition process to pick Supreme Court justices would reduce the impact of their opinions on public policy questions by making it impossible to know in advance which justices will decide a case when litigants file it in federal court. Sortition is when public officials are selected randomly out of a larger pool of candidates. Incorporating it into the confirmation process will alter the current dynamic surrounding the Supreme Court.
Under this plan, the president and Senate would approve candidates to sit on the twelve Circuit Courts of Appeals as required by the Constitution’s Appointments Clause. The Supreme Court’s eight associate justice seats would then be filled by a recurring random draw out of the 179 circuit-court judges. Justices would take a temporary leave of absence from their circuit-court duties to serve on the Supreme Court. After one term—one year—the individuals selected by sortition to serve on the Supreme Court would return to the lifetime circuit-court seat to which they were originally appointed. Only the Chief Justice would remain on the Supreme Court from one term to the next as required by the Constitution.
Incorporating sortition into the judicial selection process in this way would alter the Supreme Court’s present dynamic for the better. Of course, justices would still be human. But sortition would make activists less likely to pursue litigation strategies to achieve their policy goals in the Supreme Court. This is because activists will be less likely to ask the Court to change public policy if they can’t know in advance the general opinions of those justices.
Critics note that sortition cannot prevent a conservative or liberal majority from controlling the Court in a given term. However, the impact those justices would have on the future course of American politics would be limited to ruling on cases that their predecessors opted to hear in the Supreme Court’s previous term and picking the cases that their successors would hear in the following term. And the odds are low that a majority of the Court’s justices would be conservative or liberal over three successive terms if the justices are selected randomly.